State ends flu shot mandate

Shortage of swine flu vaccine forces end to controversial rule

Published 1:00 am, Friday, October 23, 2009

ALBANY — Citing a shortage of the vaccine, the state Department of Health has ended a mandate that most of the state's health care workers be inoculated against the flu.

Gov. David Paterson attributed Thursday's decision to limited supplies of the H1N1 vaccinations, a number of doses far short of the federal government's expected delivery. The decision also tosses out mandated seasonal flu shots.

"Over the last week, the Centers for Disease Control and Prevention acknowledged that New York would only receive approximately 23 percent of its anticipated vaccine supply by the end of the month," Paterson said in a prepared statement. "As a result, we need to be as resourceful as we can with the limited supplies of vaccine currently coming into the state and make sure that those who are at the highest risk for complications from the H1N1 flu receive the first vaccine being distributed right now in New York state."

This summer, the federal government projected 120 million doses would be available by the end of October. This week, the CDC changed expected delivery to just 27.7 million doses. The CDC allowed the state to order only 146,300 doses of vaccine, even though New York's health providers requested more than 1,482,822 doses.

The order from Health Commissioner Richard Daines that health care workers who come in contact with patients, including employees of hospitals, receive the vaccine came earlier this fall and has resulted in at least two lawsuits and protests over what many workers claimed was an unfair intrusion on their freedom of choice.

Daines presented the measure as a simple matter of due diligence for health care workers, whose presence in hospitals and other facilities brought them into close contact with infants, the elderly and other people whose immune systems might be compromised.

Daines said Thursday that it was essential to first get the vaccine to those who need it most.

"We had told hospitals that if they had to choose between vaccinating patients or employees to vaccinate patients first," Daines said in a prepared statement. "This week, the CDC confirmed that most of the national supply of seasonal flu vaccine has been distributed, and that H1N1 vaccine distribution is far behind projections. New evidence is showing that H1N1 can be especially virulent to pregnant women and young people – so they should get vaccinated first."

One of the lawsuits led to a temporary injunction against the order, which mandated that all health care workers get the shot by Nov. 30 or risk losing their jobs.

Opponents of the mandatory shots said they were heartened by the news.

"They should" withdraw the mandate, said Kevin McCashion upon hearing the news. The Colonie businessman helped organize a local protest against the mandate.

Lorna Patterson, a nurse in the emergency room at Albany Medical Center Hospital, was among a group of health care workers who brought a lawsuit to fight the order. She said late Thursday that she and her fellow nurses were just excited they could concentrate on nursing. She said Paterson recognized the importance of letting people make their own health care decisions.

"I'm just glad our health care organizations can function, knowing they have the stuff they need," she said.

Terence Kindlon, the Albany attorney who brought one of the lawsuits against the state, said the state decided to act in good faith. He said questions remain about whether or not there is even a health crisis. He said it was unfair to single out a small slice of the population upon which to force an untested vaccination.

"I think they tried to sneak this one under the radar," Kindlon said. "The lesson is it's better to play by the rule book."

Kindlon said he believes the decision to back off the mandate will end his court case, but some nurses want to prevent any future mandates, which the governor's office left open as a possibility.

Sue Field, a Poughkeepsie nurse who filed suit against the rule, said she wants to continue her case in order to get a court decision against the mandatory vaccine.

"This is encouraging, but I don't see that at this moment it would stop the lawsuit," she said.